.Judge in Purple Line Lawsuit Offers Little Hope for Maryland in Hearing

Judge in Purple Line Lawsuit Offers Little Hope for Maryland in Hearing

Success of state's attempt to have the judge issue a stay so it can secure federal funding for the project seems unlikely

By Andrew Metcalf

| Published: 2017-06-15 18:11 |

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Purple Line rendering via Maryland Transit Administration

U.S. District Court Judge Richard Leon doubled down Thursday on his rulings in an ongoing lawsuit that have blocked construction of the Purple Line and said the state has itself to blame for the project’s funding problems.

During a hearing held in Washington, D.C., Leon informed an attorney representing Maryland that the state is responsible for the problems caused by the construction delay because it signed a $5.6 billion contract to build the light-rail line while the lawsuit was working its way through his court.

Leon scheduled the hearing after Maryland officials requested a stay of his previous rulings so it can move forward with the the 16-mile light-rail line project while it appeals Leon’s ruling. The proposed line would connect Bethesda with New Carrollton in Prince George’s County if built.

Leon had vacated the project’s federal approval in August and ordered the state in May to conduct a new supplemental environmental review after agreeing with the plaintiffs that Metro’s recent ridership decline and safety issues should be examined to determine their impact on future Purple Line ridership.

The plaintiffs in the lawsuit are the trail advocacy group Friends of the Capital Crescent Trail and Town of Chevy Chase residents John Fitzgerald and Christine Real de Azua.

The judge’s decisions have prevented the state from signing a full funding agreement with the federal government to obtain $900 million proposed for the project. The state has filed an appeal asking the U.S. Court of Appeals in D.C. to review Leon’s rulings.

Albert Ferlo, an attorney from the District firm Perkins Coie who is representing the state in the litigation, argued the state would not be able to continue to fund pre-construction activities—which are costing about $13 million per month—unless it can secure the $900 million.

Ferlo said the Federal Transit Administration had adequately examined Metro’s impact when it found the Purple Line would still achieve its projected goal—to provide an improved east-west connection between Montgomery and Prince George’s counties—even if Metro didn’t exist.

Leon responded that he believed one of the goals of the Purple Line was to improve Metro’s service. And he asked Ferlo whether he believed a new analysis that also examined alternatives to the light-rail line such as a bus rapid transit system might reduce the cost for the federal government.

Ferlo said reducing the project’s cost should not be part of the lawsuit that focuses on whether the FTA violated the National Environmental Policy Act by not properly considering Metro’s issues. He said cost considerations should not be grounds for Leon to reverse FTA’s decision that the project would achieve its goal.

Leon fired back that he asked FTA to take a “hard look” at how Metro’s issues would impact the light-rail line and that the agency “did not do that.”

The Purple Line is a Maryland project that won’t be operated by Metro. Last year, the state signed a 36-year, $5.6 billion contract with Purple Line Transit Partners—a private team of construction and finance companies—to construct, operate and maintain the light-rail line.

The debate between the judge and the attorney then turned to who was responsible for the money the state could lose if the Leon didn’t grant the stay. The state has said it stands to lose up to $800 million if the project is canceled, which officials say could happen if the legal battle continues for an extended period. The state has suspended key pre-construction activities to reduce its costs while the litigation works its way through the federal court system.

Leon said the state is responsible for the potential losses because it signed the contract with Purple Line Transit Partners while the lawsuit was being considered in his court and did not add an escape clause in case court rulings went against the state’s interest.

“Maryland was the one that took the risk,” Leon said. “You’re the ones who came up with the deal … . Why should the court bail you out of the gamble you took?”

Leon also said the state could have waited for him to issue a ruling in the case—the first of which came in August, about five months after the contract with the private partner was signed.

“You chose the litigation strategy that put you in the position you’re in today,” Leon said.

Ferlo said Leon’s statements about the state’s irresponsibility would mean that any transportation project that has a lawsuit pending against it could be halted—even if the case was frivolous.

Eric Glitzenstein, the attorney for the plaintiffs, argued that Metro’s issues fundamentally changed the cost-benefit analysis of the Purple Line, thereby warranting the new environment analysis.

In a discussion with Glitzenstein, Leon speculated that a new analysis may find an alternative to the light-rail line that could cost the federal government less than $900 million.

“Perhaps under a more modest approach… it could be $400 million, $500 million,” Leon said, “which would better protect taxpayers.”

Glitzenstein said the state possibly could spend half the cost on a bus rapid transit system and that the new environmental review could examine whether that’s the case. The attorney also noted that Maryland continued to spend money on the project after Leon vacated its federal approval and issued his first ruling calling for a new environmental review in August.

“This is the ultimate example of self-inflicted injury,” Glitzenstein said.

Leon acknowledged that if he were to grant the state a stay, Maryland could receive the federal funds and move forward with construction. But he wondered how the federal government would get its money back if the Court of Appeals upheld his ruling calling for a new environmental analysis.

Throughout the discussion with Glitzenstein, Leon occasionally laughed as the attorney refuted the state’s arguments in the case.

Glitzenstein said Maryland and the FTA made a poor tactical decision in not proceeding with a new environmental review after Leon first ordered one in August. The attorney noted that review may have been completed by now.

Ferlo responded that he didn’t believe the review could have been completed by now. Even if the FTA and state had proceeded with it, Leon hadn’t ruled at that time on other outstanding environmental issues the plaintiffs had raised in the case, he noted. Ferlo said there was the possibility that Leon could have ordered other environmental reviews based on those issues.

Ferlo admitted during the hearing that he was “not hopeful” Leon would rule in the state’s favor and grant the stay.

“We’d appreciate the decision quickly so we can move on,” Ferlo said.

Leon responded that he’ll have to write an opinion on the stay because the case is being appealed. “The Court of Appeals likes things with ribbons and bows on it, so they’re going to get ribbons and bows,” Leon said. He did not say when he’ll issue his opinion on the request for the stay.

Greg Sanders, vice president of the pro-transit group Purple Line Now! who attended Thursday’s hearing, said after the hearing he was frustrated by Leon’s comments.

“Holding this hearing is an attempt to legislate from the bench,” said Sanders, who added that discussion of the project’s cost is the responsibility of elected officials and not a judge. “That’s not what [the National Environmental Policy Act] is about.”

Ferlo said the state is waiting for the Court of Appeals to announce a briefing schedule for the case so the state can make its arguments to that court. Officials from Purple Line Transit Partners who were at the hearing directed all questions about the case to the Maryland Transit Administration.

“We disagree with the judge’s commentary,” Erin Henson, a spokeswoman for the Maryland Department of Transportation said in a statement Thursday evening. “We don’t believe Judge Leon will have the last word on this incredibly important project for the Washington region and the state of Maryland.”